Sybil Niden Goldrich
CLAIMANTS' ADVISORY COMMITTEE NEWSLETTER
Volume 1, No. 2, July 13, 2004
Welcome to the second e-newsletter from the Claimants' Advisory Committee (CAC) in the Dow Corning bankruptcy Settlement Plan. The first e-newsletter was mailed July 1, 2004 and is available on the CAC website by clicking on "Electronic Newsletter." You were sent a copy of the newsletter because our records show that you requested to be on the mailing list. If you wish to unsubscribe, click [HERE]. This newsletter is intended only for claimants in the Dow Corning Settlement Plan and attorneys or legal professionals who represent claimants in the Settlement Plan. If you are not a claimant or an attorney representing claimants, you are not authorized to receive this e-newsletter and should inform us promptly.
The CAC established this e-newsletter to provide claimants and attorneys with updates about the Settlement Plan, primarily about the Settlement Option, although we will provide information about the Litigation Option when it becomes available. The next issue of the CAC E-Newsletter will be available on July 27, 2004. We urge you to also visit the Settlement Facility website (www.dcsettlement.com) and CAC website (www.tortcomm.org) on a regular basis to download or view relevant documents and read updates and new information.
1. Claims Payment Update. As of June 20, 2004, the Settlement Facility reports that it has issued 7,513 checks totaling approximately $45 million. The Settlement Facility is working to issue payments every 2-4 weeks. The paying agent, Well Fargo Bank, mailed the first batch of checks in envelopes that were labeled "Settlement Facility - Dow Corning Trust." To protect the confidentiality of recipients, the envelopes have been changed so that they will not have the name "Dow Corning" on them. We regret that this happened and greatly appreciate it when claimants and attorneys bring issues like this to our attention so that we can work with the Settlement Facility to correct them.
2. Notice of Intent Eligibility Update. This update applies only to claimants who did not file a Proof of Claim form on or before November 30, 1999. If you have a timely filed Proof of Claim, then this update does not apply to you.
As reported in the July 1, 2004 e-newsletter, the eligibility of claimants who filed only a Notice of Intent form after November 30, 1999 and who do not match to a Rule 3005 co-debtor claim is in question (these claims are referred to as NOI claimants). Dow Corning filed a motion with the District Court in February 2004 seeking to prevent and limit the right to "NOI claimants" to recover compensation from the Settlement and Litigation Options. The Tort Claimants' Committee opposed this motion and, while the dispute was pending before the District Court, reached an agreement with Dow Corning to resolve the dispute as described below.
First, if you filed a Notice of Intent form after November 30, 1999 and your name matches to a name or a description in a Rule 3005 co-debtor claim, then you "match" and can participate in the Dow Corning bankruptcy Plan. The following discussion will not apply to you. The discussion below applies only if your NOI claim does not appear to match to a name or description in a Rule 3005 co-debtor claim.
As part of the agreement that was reached, a survey developed by the CAC and Debtor's Representatives (persons who represent the interests of Dow Corning) will be sent to all NOI claimants or their attorney of record within the next week. The survey requests information to determine if NOI claimants match to a Rule 3005 co-debtor claim, i.e. a claim filed by Bristol, Baxter, Dow Chemical, etc. For example, the survey requests claimants to provide all last names (i.e., maiden or married names) they have been known by, former addresses, country of citizenship, and whether they filed a claim in MDL 926 global settlement or Revised Settlement Program. Second, if the information does not suggest a match to a Rule 3005 co-debtor claim, then Part B of the survey asks claimants to answer a series of questions and provide documents about their benefit status. For example, the survey includes questions about whether the Dow Corning implants have been removed, were intact or ruptured, and whether the claimant has a diagnosis of one of the eligible diseases or conditions.
The Settlement Facility will mail a copy of the NOI claimant survey. A copy of the survey, motion by Dow Corning and response of the TCC, a summary of Rule 3005 co-debtor claims, and the Court's June 10, 2004 Order will be available on this website later this week. The deadline to complete and return the survey is October 30, 2004. Once the results are reviewed, the Court will determine whether NOI claimants may be eligible to apply for compensation. A determination by the Court may not be reached by the time you must make a decision to opt-out of the Settlement Option - November 29, 2004.
We understand that many NOI claimants may be learning just now that your eligibility is or may be in question. We urge you to carefully read the cover letter that will accompany the NOI survey, answer the survey questions to the best of your ability, and, if you have any questions, you can contact the Claims Assistance Program at email@example.com or the Claimants' Advisory Committee at firstname.lastname@example.org.
3. Released Claims. The CAC is currently working on how to deal with claims that Dow Corning contends were "released" in prior settlements and therefore may be ineligible to participate in this bankruptcy plan. Part of our efforts have been to suggest to Dow Corning that certain released claims (such as those without counsel who entered into settlements with Dow Corning in reliance on Judge Pointer's order in early 1994) should be allowed to participate in the bankruptcy plan subject to reducing their claim by the amount that they received in their prior settlement with Dow Corning. In addition, we are working to develop a process where claimants can object to or challenge the validity and applicability of the release in a quick and efficient manner. If you (or your client) received a letter from the Settlement Facility stating that you are ineligible because of a release that you signed, please contact the CAC at email@example.com. We will report on the ongoing discussions on this topic in our next newsletter.
4. Orders Entered by Judge Hood. The CAC and Debtor's Representatives entered into two agreed orders which were presented to Judge Hood for approval on July 9, 2004. The first agreed order pertains to new Questions and Answers about allowable attorney fees and expenses. The second agreed order deals with data sharing between the Settlement Facility and the three Canadian claims offices. Both orders will be available on the CAC website as soon as they are signed and entered by Judge Hood.
5. Tissue Expander and Tolling Plan Interpretations Update. As reported in the July 1, 2004 e-newsletter, two Plan interpretation disputes - whether tissue expanders are breast implants and the applicability of the tolling language in Disease Option 2 claims -- were briefed and argued to the Claims Administrator at a hearing on June 22, 2004. On June 28, the Claims Administrator issued a statement that "she does not intend to issue a decision" on either of these matters. Accordingly, the CAC must now file a motion with Judge Hood by July 19 for a determination. We intend to file a motion on both issues. We are also working with the Debtor's Representatives to resolve this issue as quickly as possible so that these claims will not be on hold any longer.
6. Proof of Manufacturer Issues. We are interested in hearing from claimants whose proof of manufacturer consists of any of the following and who have been rejected as acceptable proof by the Settlement Facility: a) you participated in a clinical study and received a Dow Corning implant in the study, but you are having difficulty establishing this; b) your implants have been removed and someone has identified them as Dow Corning, but this proof has been rejected; or c) you received a 50% reduction in the Revised Settlement Program (RSP) because you had a Bristol, Baxter or 3M implant and a Dow Corning implant, but your Proof of Manufacturer for your Dow Corning implant is now being rejected by the Settlement Facility and/or Dow Corning. Please send all examples of this type of proof rejection to the CAC at: firstname.lastname@example.org.
7. Affirmative Statements by Doctors as Acceptable Proof of Manufacturer.
The CAC is trying to collect all affirmative statements that the Settlement Facility has found acceptable so that we can develop a list of doctors who exclusively used Dow Corning breast implants and the time frames during which Dow Corning breast implants were used by those doctors. If you have received a letter from the Settlement Facility stating that your proof of manufacturer is acceptable and that proof was based on an affirmative statement, please send us (by regular mail or email) a copy of both documents. We will keep your name confidential, but we would like to use the doctor's information to make it available to other claimants. For example, in the affirmative statement that is posted as an example on the CAC website, we know that Dr. Charles P. Yarn, Jr. of Huntsville, Alabama stated that he only used Dow Corning breast implants during his years of practice. Therefore, claimants implanted by this doctor may be able to rely on the affirmative statement as long as they can show that they were implanted by this same doctor.
- Form to use for Affirmative Statements. For claimants whose medical records are no longer available, you can obtain an "affirmative statement" from the implanting physician or some other responsible person at the facility where the implantation took place that attests that the claimant was implanted with a Dow Corning implant. The person making the statement must provide the basis for the conclusion that the implant was a Dow Corning implant. We have heard from a number of claimants and attorneys that they are having difficulty drafting an affirmative statement that is acceptable to the Settlement Facility. Therefore, we are posting on the CAC website a copy of an affirmative statement from a claimant whose proof of manufacturer was deemed acceptable (the claimant's name has been removed). You can use this affirmative statement as a form to use with your implanting physician. To view this affirmative statement, click on our newest section called "Other Downloads."
- "Piggy-back" Affirmative Statements. If your doctor states that (s)he only used Dow Corning products during a defined period as the basis for his/her conclusion that your implants must be made by Dow Corning, then we would like to hear from you. A new protocol that we recently reached with Dow Corning allows claimants to use or "piggy back" off an affirmative statement from a doctor even if that statement or affidavit was written for a different claimant as long as claimants can demonstrate that she was implanted by that same doctor during the same time frame. For example, claimant "A" submits an affirmative statement by Dr. "Smith" stating that he only used Dow Corning breast implants from 1975 - 1980. Claimant "B" was also implanted by Dr. Smith but Dr. Smith is now deceased or has moved and cannot be located to write a similar statement or affidavit for her. The new protocol allows claimant "B" to rely on claimant "A's" affirmative statement from Dr. Smith sas long as she can show that she was implanted by Dr. Smith anytime from 1975 - 1980. In other words, the new protocol allows other claimants to "piggy back" off of the existing statement or affidavit to show that they also have acceptable proof of a Dow Corning breast implant.
We have also asked the Settlement Facility to collect this information and make it available on its website as well. We hope to report more on this in the next e-newsletter.
8. Settling Health Insurer List. The list of Settling Health Insurers is now available to review on the Settlement Facility website (www.dcsettlement.com). You can review this list to determine if your health insurer is part of the settlement reached with Dow Corning. If they are on the list, then you do not have to reimburse your health insurer for costs incurred related to your implants. If your health insurer is not on the list, contact Claims Assistance at email@example.com and they can research the issue to determine if your insurer agreed to participate in the settlement.
9. Claim Withdrawal Form. For claimants who have been classified in Class 8 - the Raw Material Class - you may want to consider withdrawing your claim from the bankruptcy case because Class 8 claimants are not offered any settlement compensation. The only option for Class 8 claimants is to pursue litigation against the Litigation Facility. These claims consist largely of claimants whose only implants are 3M, McGhan, or other saline and silicone gel breast implants that are not eligible for any compensation from the Settlement Option. We have posted a form to download and use to withdraw your claim. Go to "Other Downloads" and click on the Claim Withdrawal Form.
10. Reminder of Informational Meetings. The first informational meetings for tort claimants and attorneys who represent tort claimants will be held next week in Los Angeles on July 21st and in San Francisco on July 23. Please check the CAC website for more information about location and time and for other meetings scheduled for September 2004.
11. Deadlines. Please mark your calendar with the claim submission deadlines in 2004. Please note that if you received a Notification of Status letter from the Settlement Facility stating that your claim is deficient, then you have a very limited amount of time to fix the deficiency or your claim will be permanently denied.
|August 11, 2004
||Deadline for late claimants (claimants who filed ONLY an NOI form but no Proof of Claim form prior to November 30, 1999) to file a Proof of Claim Form pursuant to paragraph 10 of the Confirmation Order
|August 30, 2004
||Deadline to file a Notice of Intent form
|October 30, 2004
||Deadline for NOI claimants to return the NOI Survey
|November 29, 2004
||Deadline to opt-out of the Settlement Option by returning the Participation Form with Box 2B checked
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