ISSN 1470-8108 Issue 84 Autumn 2011

Contents:

1. Swings and Roundabouts for UK Mesothelioma Claimants
2. Enforcement Action in Schools shows Policy of Asbestos Management has Failed
3. Grants for UK Asbestos-Related Disease Research
4. News Round-up

Tribute to Frank Maguire (1955-2011)

The death of solicitor advocate and Glasgow lawyer Frank Maguire on September 17, 2011 came as a shock to those of us who had grown used to relying on Frank's leadership and strategic thinking in the battle to achieve justice for asbestos victims. “Frank Maguire,” said one colleague “combined a razor sharp intellect with a passionate commitment to fight for justice for victims, particularly those suffering from industrial diseases like asbestos exposure and Hep C.”1 God knows how many injured shipyard and factory workers passed through his office, but for each and every one Frank strove to achieve the best results possible within the system. Where the law failed them, efforts were progressed to right the wrongs enshrined in statutory instruments, UK and Scottish legislation. Working closely with asbestos victims, trade union colleagues, legal professionals and political allies in Westminster and Holyrood, Frank identified injustices endemic within the legal system and then changed them. Campaigns he embarked upon – and won – involved the Damages (Scotland) Acts of 1976 and 1993, the Compensation Recovery Unit's attempts to claw back asbestos compensation from victims, the protection of plaintiffs' interests in the aftermath of the collapse of Chester Street Insurance and the administration of T&N Ltd. and the reinstatement of the rights of Scottish pleural plaques claimants to sue negligent employers. The Rights of Relatives (Mesothelioma) (Scotland) Act 2007, for which Frank had lobbied so assiduously, greatly increased the scope for grieving family members to obtain compensation. Close friend Ian McFall said:

“Frank's influence on the Scottish legal system was immense. He was instrumental in bringing about some of the most progressive reforms in Scotland to benefit injured working people, their families and communities in a generation or more.”2

Iain Gray, Member of the Scottish Parliament, called Frank a “true champion for the underdog,”3 while leading Queen's Counsel Paul McBride said:

“Frank Maguire was an outstanding lawyer and a man of great integrity and decency who was entirely principled in everything he did. He was very much a supporter, professionally and personally, of the trade union movement, and took a lot of cases for people of whom he didn't always ask payment. He always tried to improve people's rights up and down the country, especially in a workplace setting...”4

Frank was a joint managing partner of Thompsons Solicitors and a former President of the Society of Solicitor Advocates. He was also a stalwart supporter of the Glasgow-based victims groups: Clydeside Action on Asbestos and Clydebank Asbestos Group. It came as no surprise that the Maguire family requested that instead of funeral flowers, contributions be sent to these groups. His death at just 55 years of age was a huge loss not only to his clients and colleagues but also to the UK legal profession as well as those campaigning to improve the plight of asbestos victims and their families. One week after the funeral, I met a close colleague of Frank's at an asbestos meeting in London. Clearly still shaken by the loss of his friend and mentor, he expressed remorse at the things which had remained unsaid. No one had been prepared for the speed with which the cancer had spread.

I knew Frank through his work for asbestos victims but it came as no surprise to me to learn that he had studied for the priesthood before deciding to take up the law. Clearly, Frank had substituted one vocation for another. Speaking about this change in direction, Frank said in an interview last April (2011) “I wanted to act for people from my own background.” Of course, he also represented clients with non-asbestos injuries, having acted for: miners during the infamous strikes in the mid-1980s, victims of the 1988 Piper Alpha Disaster and haemophiliacs infected via blood transfusions with Hepatitis C and HIV. He was a sportsman, a sailor, a keen reader and a harmonica player!! At the core of his life was his wife Fiona and sons Calum, Matthew, Luke and John. He is survived by them and by his mother Mary, brother Robert and sisters Maureen, Kathleen, Irene, Maria and Louise.

1. Swings and Roundabouts for UK Mesothelioma Claimants

The chances for successful outcomes of mesothelioma cases are undoubtedly being affected by decisions made and judgments handed down in recent months. From issues such as compensating charities for hospice care to corporate culpability in the 1950s to low level asbestos exposures in schools and elsewhere, much court time and legal resources have been expended on shoring up or, depending on which side you are on, on attacking the rights of victims to hold negligent corporations or dutyholders to account for hazardous exposures.

In February 2011, insurers Royal & Sun Alliance dropped the appeal to a High Court decision in the case of Drake and Starkey v Foster Wheeler5 which had found the negligent employer liable for costs incurred by St. Joseph's Hospice for the provision of palliative care at home as well as in the hospice for mesothelioma sufferer James Willson, the father of Catherine Ellen Drake and Tina Starkey. Judge Anthony Thornton's August 2010 judgment explained that:

“The basis of this claim is that Mr Willson was provided with essential palliative care which it was both reasonable and necessary for him to receive given his terminal decline in health as a direct result of the malignant mesothelioma for which the defendant is wholly and directly responsible in law…The principle governing the recovery from tortfeasors for this head of recovery is that the injured claimant may recover the reasonable value of gratuitous services rendered to him by way of voluntary care as compensation to the carer for providing such care.”6

According to Solicitor Caroline Pinfold, who represented the Willson family, “the hospice was awarded just over 10,000 and of course the judgment is now authority for hospices to be awarded all costs funded by way of voluntary donations in similar cases.” 7

The Supreme Court's March 9, 2011 decision in Willmore v Knowsley Metropolitan Borough Council and Sienkiewicz v Grief (2011) UKSC, which upheld mesothelioma claims for low level exposures, was a highpoint of 2011.8 All seven Supreme Court Judges ruled in favor of arguments advanced on behalf of Dianne Willmore and Enid Costello whose exposures to asbestos resulted in their contracting mesothelioma. The Law Lords judgment came as a huge relief after close questioning during the 2010 Court proceedings had led to pessimistic predictions by some observers. This was the first victory at this level for a claimant (Willmore) whose exposure took place at school and as such was a landmark case. Commenting on the plaintiffs' victory, Tony Whitston, Chair of the Asbestos Victims Support Groups' Forum UK, said:

“This case involved the wrongful exposure of two people to asbestos, which caused their deaths. There is no known safe level of exposure to asbestos. Arguments for a 'safe' threshold are everything to do with denying liability for compensation and nothing to do with protecting people. This case not only protects compensation for those who have been negligently exposed to low levels of asbestos, but also gives a warning to those who think that workplaces such as schools, which are heavily contaminated with asbestos, are low risk.”9

One does not have to be a legal eagle to appreciate the significance for asbestos claimants of the April 13, 2011 Supreme Court judgment in the hearing loss test case of Baker v Quantum Clothing Group Limited.10 Unfortunately, this verdict overturned a 2009 Court of Appeal ruling and reverted to the essence of the harsh 2007 decision by Nottingham High Court Judge Inglis. The first instance judgment dismissed six out of seven claims as unfounded; the employer of Mrs. Baker, the sole plaintiff remaining, was found by Judge Inglis not to be in breach of duty either under common law or under Section 29 of the Factories Act 1961. The 3:2 Supreme Court majority had an equally relaxed interpretation of employers' obligations. Lord Mance wrote:

“I would allow the appellants' appeals both at common law and under section 29(1). At common law, Quantum, and other employers in a similar position such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1) in not implementing measures to protect their employees in respect of noise exposure at levels below 90dB(A) prior to 1 January 1990.”

Chastising the interference of the Court of Appeal with the “assessment of the standards of the reasonable and prudent employer during the 1970s and 1980s,” Lord Dyson also allowed “the appeals both at common law and on the section 29(1) issue,” as did Lord Saville who gave his opinion in two lines: “To my mind the contrary views depend to a significant degree on hindsight and consequently place an undue burden on employers.” John Hendry, the Queen's Consul who represented the claimants in Baker, believes that the Supreme Court's ruling ignores the fact “that the workers bear the risk of injury, not the employers. The issue for the law is whether the employer pays compensation when risk eventuates.”11 The repercussions of the insurers' successful defense of low-level exposure occupational disease claims were, warned Thompsons Solicitors' Judith Gledhill, of wider significance:

“Baker now appears to have encouraged a switch of tactics by insurers in mesothelioma cases. Having tried, with mixed fortunes in recent years, to avoid or limit liability on causation grounds (Fairchild v Glenhaven, Barker v Corus) the recent Supreme Court decisions in Sienkiewicz v Greif (UK) Ltd and Knowsley Metropolitan Borough Council v Willmore declared this a lost cause. But breach of duty in low-level asbestos exposure claims are still attacked and successfully defended by employers and insurers…

Having used the control limits argument to rescue employers from liability for noise damage in Baker, the decision is now likely to be applied by insurers to defend other low-level exposure occupational disease claims, including mesothelioma. The prospect of the Baker defence making inroads to mesothelioma claims potentially heralds even more uncertainty, hardship and anxiety for some of the most disadvantaged claimants in our society.”12

The day after the Baker judgment was announced, the Queen's Bench Division issued a claimant's verdict in the case of Chandler v Cape PLC. Mr. Justice Wyn Williams found “that the three-stage test for the imposition of a duty of care” had been met regarding a claim on a parent company (Cape PLC) for hazardous occupational asbestos exposure in the late 1950s and early 1960s at a subsidiary (Uxbridge Flint Brick Company) which led to the plaintiff contracting asbestosis. Due to an “asbestosis exclusion clause” in the insurance policy of Mr. Chandler's employer Uxbridge Flint Brick, the case was brought against parent company Cape, formerly one of the UK's biggest asbestos conglomerates. After a two-day trial, the “corporate veil” was successfully pierced and damages were awarded of 120,000+.13 Speaking about the background to this case, the claimant's solicitor Vijay Ganapathy said:

“It was a huge challenge to acquire sufficient evidence from the 1950's [and] early 60's when many of the crucial documents have been destroyed or lost. The judge was convinced of Cape's involvement in matters concerning asbestos safety, which revealed the liability we have suspected they always held to their workers.”14

It was not long, unfortunately, before the Baker decision was affecting mesothelioma cases in the High Court. The Baker challenge to force claimants to prove breach of duty in cases involving low level occupational exposures was key to the legal strategy of the defense team representing Filtona UK Ltd. in a case brought on behalf of mesothelioma victim Mrs. Asmussen who alleged negligent exposure whilst employed at a factory manufacturing cigarette filters on the Bede Industrial Estate in Jarrow.15 The issue of foreseeability of risk was, defendants said, something which should only be assessed by the standards of the time, in this case the 1950s, 1960s and early 1970s. Dismissing the claim on July 6, 2011, Mr. Justice Simon of the Queen's Bench Division did not accept the evidence that Mrs. Asmussen was exposed to asbestos during her second period of employment (1963 to 1972) and decided that her asbestos exposure during the first period of employment (1955 to 1960), which he held had caused her mesothelioma, was not of sufficient extent that the defendant should have appreciated the risk.

Legal experts believe that Mr. Justice Simon's verdict was factually flawed: “At the time with which the case is concerned,” he wrote “the understanding of asbestos related disease was developing. Even by the end of the second period of the claimant's employment (1972) the dire consequences of exposure to small quantities of asbestos was not greatly recognised.” There is ample proof not only from the UK but from elsewhere that knowledge about the asbestos hazard was certainly available by the periods in question; indeed the Judge refers to numerous academic papers, government circulars, Acts of Parliament and other publications submitted by the plaintiff's legal team which demonstrated the knowledge existing at relevant periods and the duties laid down by statutory instruments to protect employees. Reflecting on the disappointing outcome of the Asmussen case Ian McFall, from Thompsons Solicitors who represented the plaintiff, said:

“There was credible evidence that Mrs. Asmussen was exposed to significant levels of asbestos during both periods of her employment but the judge found for the employer on the facts. As we see an increase in the number and proportion of mesothelioma claims involving relatively low level or intermittent, transient exposure, we can expect more legal challenges focussing on the fact specific evidence of exposure and on breach of duty, rather than causation issues.”16

2. Enforcement Action in Schools shows Policy of Asbestos Management has Failed

by Michael Lees

Recent publication of HSE enforcement action shows that a significant proportion of schools are not safely managing their asbestos.17 HSE visited 158 schools that are not under local authority control, including academies, faith schools and private schools. Thirty of the schools had enforcement action taken against them for failures in asbestos management; in addition, action was taken against two local authority schools because of a potential disturbance of asbestos and because asbestos debris was found.

This is an appalling indictment of the standards of asbestos management in schools. There were 70 breaches of the Health and Safety at Work Act for failure of school owners and governors to ensure the health and safety of their staff and the children. There were a further 74 breaches of the Control of Asbestos Regulations for failing to identify asbestos, failing to implement a management plan and failing to train staff. It is unacceptable that more than twenty-five years after schools were told to identify their asbestos, manage it and train people they are putting people's lives at risk by not doing so.

Seven years ago, HSE were warned that many schools were failing to protect staff and pupils from the dangers of asbestos and that people were particularly at risk in schools outside local authority control. HSE set up a campaign to improve asbestos management in schools and to “dramatically reduce the exposures” of teachers, support staff and children. However, the campaign was dropped and resources reallocated to reducing the asbestos exposures of carpenters, electricians and plumbers. One of the first priorities of the HSE school's campaign was to assess the standards of asbestos management in non-local authority schools; however, that never happened, and it has taken until now to confirm the disturbing truth that people have been, and remain, at risk.

There are almost three million staff and children in independent, faith schools and schools outside direct local authority control, and the numbers are increasing as government policy encourages the formation of Free Schools and Academies. That means that the owners or governors are legally responsible for the schools, but, as the latest HSE enforcement action has shown, the level of training and asbestos awareness in these schools does not comply with minimum government standards.

This series of inspections was triggered by an almost total failure of dioceses to respond to an earlier questionnaire to assess compliance with guidance to apply sealant on cracks in walls and columns of “system” built schools to prevent the release of fibres from damaged asbestos into the classrooms. Two rounds of inspections of local authority schools were carried out to assess compliance; in the first, 20 enforcement notices were issued, and in the second, a quarter of the local authorities that were visited had enforcement action taken and a further 18 notices were issued.

Government policy for schools is to leave asbestos in place and manage it for the remaining life of the buildings. This enforcement action shows that this policy has failed.

3. Grants for UK Asbestos-Related Disease Research

In early October 2011, a decision regarding the disbursement of 1 million for UK research into asbestos-related diseases was made public. This money represents the first of three donations promised by the Association of British Insurers (ABI) during the final days of the Labour Government.18 Following discussions between the ABI and government agencies, the British Lung Foundation (BLF) was tasked with overseeing the award-granting process and the administration of the funds. 19 At a September 30, 2011 meeting in London, allocations totaling 850,000 were announced by Ian Jarrold, Research Manager for the BLF; the details of the awards were uploaded to the BLF website some while later.20

Table 1: Asbestos-Related Disease Research Grants

Title of GrantAmount
()
Duration
(months)
 
Feasibility study of early initiation of multimodal pain management in mesothelioma patients
24,106     18
GADD34: a potential drug target in malignant mesothelioma93,156     36
 
Current asbestos exposures and resulting mesothelioma risks in the UK population
199,743     24
 
Rational targeting of Inhibitor of Apoptosis Proteins (IAPs) for effective therapy of malignant pleural mesothelioma
188,020     30
 
Increasing radiotherapy responsiveness of mesothelioma by activating tumour specific cell death
199,631     36
The genomic architecture of mesothelioma145,344     24
 
Total
 
850,000   

 
While the distribution of the 850,000 was done through a rigorous and competitive process involving research bidding and peer review, there is unease over the distribution of the remaining 150,000 of the 2011 allocation. Feedback from enquiries suggests that 50,000 will be used by the BLF to cover administrative fees leaving 100,000 for initiatives to raise public awareness of the asbestos hazard. Criticisms that this money might be better used for research, have been countered by claims that the ABI donors stipulated that 10% of yearly expenditures be ring-fenced for programs to raise asbestos awareness. Even if that is the case, the process by which the 100,000 is being allocated remains unexplained. According to Ian Jarrold, BLF staff in the Fundraising & Marketing and Communications teams are involved in discussions with donors about the awareness raising campaign scheduled to commence in April 2012. 21 The BLF has also engaged in negotiations with the HSE in order to avoid duplicating work done by the “Hidden Killer Campaign.” Unfortunately, the presentation made by the BLF's Hayley Richardson at an October 1, 2011 meeting in London gave insufficient information about the plans for the 2012 spend of the 100,000 to allay public unease. Calls are being made for greater transparency of the processes involved in deciding who will participate in the 100,000 awareness-raising campaigns in 2012, 2013 and 2014 and what objectives these initiatives will prioritize.

4. News Round-up

Developments

Supreme Court Upholds Scottish Asbestos Law

The Supreme Court has signalled the end to the attack on Scottish asbestos legislation by dismissing an appeal by insurance companies against legislation enabling pleural plaques victims in Scotland to obtain compensation from negligent employers. The 74-page decision in the case of AXA General Insurance Limited and others v The Lord Advocate and others was handed down on October 12, 2011. Commenting on the plight of pleural plaques sufferers in socially disadvantaged areas in Scotland, Lord Hope wrote:

“It seems to me that the Scottish Parliament were entitled to regard their predicament as a social injustice, and that its judgment that asbestos-related pleural plaques should be actionable cannot be dismissed as unreasonable.”22

Reacting to the news of the positive outcome for asbestos claimants, Scotland's Justice Secretary Kenny MacAskill urged insurers to “settle those claims that have been stalled for so long.”

Sentencing of Marks and Spencer plc and three contractors

More than 1.8 million in fines and court costs were issued on September 27, 2011 following criminal convictions of the high street retailer Marks and Spencer (M&S) plc and contractors employed to undertake asbestos removal work at stores in Reading and Bournemouth. The prosecution had been brought by the Health and Safety Executive (HSE) for infringements of Sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974, Regulation 15 of the Control of Asbestos at Work Regulations 2002 and Regulations 11 and 16 of the Control of Asbestos Regulations 2006. Calling this outcome a “wake up call,” HSE representative Richard Boland said that “any refurbishment programmes involving asbestos-containing materials must be properly resourced, both in terms of time and money – no matter what.” Asked to comment on its conviction for exposing workers and members of the public to the risk of asbestos, an M&S spokeswoman said:

“We are very disappointed with the result of this case, as we believe that we have always acted responsibly and with a safety first attitude. The health and safety of our employees, customers and contractors is of the upmost importance to us. We hope to continue to work closely with the HSE in the future to ensure that strict regulations and safety standards relating to asbestos are maintained.”23

M&S was fined 1 million and ordered to pay costs of 600,000. According to an HSE spokesperson, this is the biggest fine relating to asbestos secured in recent history.24 Other companies convicted in this case include: PA Realisations Ltd., formerly Pectel Ltd. (fined 200), Styles & Wood Limited (fined 100,000 with an additional 40,000 for costs) and Willmott Dixon Construction Ltd (fined 50,000 plus 75,000 costs).25

Legal Conference

The conference “Managing risks in the new Jackson era” will be held in Manchester on November 10, 2011. The agenda features presentations from legal, medical and technical experts including Senior Master Steven Whitaker, Dr. Richard Attanoos, Dr. Phil Barber, Patrick Walsh, Ruth Davies, Stephen Glynn and David Short. Philadelphia lawyer Marc Weingarten will be discussing developments in the United States. Attendance at the event organized by the Association of Personal Injury Lawyers attracts 6 hours 10 minutes of Bar Standards Board Continuing Professional Development credits.26

Literature

A 37-year observation of mortality in Chinese chrysotile asbestos workers was published online on September 21, 2011 by the academic journal Thorax.27 Professor Xiaorong Wang and his co-authors from Hong Kong, Japan and China undertook research on a cohort of 577 asbestos workers who were followed from 1972 to 2008. There was, the researchers found “a clear exposure–response trend with asbestos exposure level and lung cancer mortality in both smokers and non-smokers.” Exposure to chrysotile asbestos was, the paper concluded, linked to increased mortality from lung cancer and non-malignant respiratory diseases.

It's pay day for insurance executives if they cut asbestos claims was the headline of an article published in the Independent on Sunday on October 9, 2011.28 Journalist Emily Duggan speculated about the size of the bonuses for insurance industry experts who are spearheading the attack on employer's liability payouts to mesothelioma claimants. The article details the background to the “trigger litigation” due to be heard by the Supreme Court in December 2011 and reports some of the criticism by asbestos victims, academics, trade unionists, lawyers and politicians of the devious means by which negligent companies are seeking to avoid paying asbestos liabilities. The TUC's Hugh Robertson said:

“The real injustice is that the insurers took the money. They had no qualms in taking the insurance policies from employers who believed their workers were insured, and now they're doing everything to wriggle out of their commitments. Whether they were legal commitments the courts will decide, but they certainly have moral commitments. However, the insurance industry has spent the last decade trying to avoid their moral responsibility in respect to people with asbestos diseases… This is only one of a series of challenges and attacks that people have had to face when trying to get compensation for employers' negligence… In addition to the court case, the insurance companies have been lobbying hard to make sure the courts can't be used in the future.”

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1 Statement from Thompsons Solicitors.

2 Email from Ian McFall. September 19, 2011.

3 Tributes paid to campaign lawyer Frank Maguire. September 19, 2011.
http://www.bbc.co.uk/news/uk-scotland-glasgow-west-14968849

4 Didcock B. Campaigning lawyer loses fight for life. September 19, 2011.
http://www.heraldscotland.com/mobile/news/home-news/campaigning-lawyer-loses-fight-for-life-1.1124466

5 http://www.bailii.org/ew/cases/EWHC/QB/2010/2004.html

6 Firm must pay for asbestos victim's hospice care. August 11, 2010.
http://www.solicitorsjournal.com/story.asp?storycode=16788&eclipse_action=getsession

7 Email received from Caroline Pinfold, October 7, 2011.

8 http://www.supremecourt.gov.uk/news/judgments.html
See also: Davies R. Two Families Caught up in the Supreme Court Litigation. British Asbestos Newsletter. Issue 82, Spring 2011.

9 Kazan-Allen L. A Righteous Decision for UK Mesothelioma Victims. March 9, 2011.
http://ibasecretariat.org/lka-righteous-decision-uk-mesothelioma-victims.php

10 Supreme Court Decision (2011) http://www.bailii.org/uk/cases/UKSC/2011/17.html
England and Wales Court of Appeal (Civil Division) Decisions (2009)
http://www.bailii.org/ew/cases/EWCA/Civ/2009/499.html

11 Care A. Mixed messages from above? Baker and Seinkiewicz judgments. APIL PI Focus Vol 21 Issue 5.

12 Thompsons' Health and Safety News. Autumn, 2011.
http://www.thompsonstradeunionlaw.co.uk/information-and-resources/health-and-safety/autumn-2011-how-low-will-they-go.htm

13 Leigh Day secures landmark victory against asbestos manufacturer. 14 April 2011.
See also: http://lexisweb.co.uk/cases/2011/april/chandler-v-cape-plc

14 ibid.

15 Lilian Rose Asmussen v Filtrona United Kingdom Ltd [06.07.11]

16 Email from Ian McFall, October 11, 2011.

17 http://www.hse.gov.uk/notices/notices/notice_list.asp?PN=2&rdoNType=&NT=&SN=F&x=23&EO=LIKE&SF=SICD&SV=education&ST=N&y=10&SO=DNIS

18 http://www.lunguk.org/research_and_grants/research_news/blf_research_news/
asbestos_related_disease_research_grants_awarded

19 Kazan-Allen L. Questions being asked. British Asbestos Newsletter. Issue 80, Autumn 2010.

20 http://www.lunguk.org/research_and_grants/research_news/blf_research_news/
asbestos_related_disease_research_grants_awarded

21 Email received from Ian Jarrold, October 6, 2011.

22 Supreme Court Judgment in the case of AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46
http://www.supremecourt.gov.uk/docs/UKSC_2011_0108_Judgment.pdf

23 Email received October 4, 2011 from Emma Johnson, Senior Corporate PR Officer, Marks & Spencer.

24 Email from Kevin Hegarty, HSE Press Officer, October 5, 2011.

25 HSE Press Release. High street retailer fined 1 Million for safety failings. Three contractors also fined. September 27, 2011. http://www.hse.gov.uk/press/2011/coi-se-msasbestos.htm

26 For more information see: http://files.apil.org.uk/Training/PDFs/Courses/1693Flyer.pdf

27 http://thorax.bmj.com/content/early/2011/09/21/thoraxjnl-2011-200169.abstract

28 http://www.independent.co.uk/news/uk/home-news/its-pay-day-for-insurance-executives-if-they-cut-asbestos-claims-2367854.html?service=Print

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Compiled by Laurie Kazan-Allen
©Jerome Consultants