Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 1, No. 3, July 27, 2004
Welcome to the third e-newsletter from the Claimants' Advisory Committee (CAC) in the Dow Corning bankruptcy Settlement Plan. The first two e-newsletters are 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.
The CAC established this e-newsletter to provide claimants and attorneys with updates about the Settlement Plan, including both the Settlement and Litigation Options. The next issue of the CAC E-Newsletter will be available on August 17, 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. Notice of Intent and Late Claimants Eligibility Update. If you have a timely filed Proof of Claim (i.e., you filed a Proof of Claim form in the bankruptcy before November 30, 1999), then this update does not apply to you.
a. Late Claimants - This is an URGENT reminder to all 4,335 claimants who were sent a Notice from Dow Corning in late May 2004 informing them that they were considered a "Late Claimant." You must complete and file a Proof of Claim form with Daticon so that it is received by the deadline of August 12, 2004. If you do not do this, your claim will be permanently barred, and you will not be eligible for compensation. Dow Corning reports that only 429 persons out of the 4,335 have returned their completed Proof of Claim form to date.
Helpful Tip: We strongly urge you to return your completed Proof of Claim form now. Do not delay and mail it too close to the deadline, because the deadline is a received by deadline. This means that the Proof of Claim form must be received by Daticon by August 12, 2004.
Helpful Tip: If you did not receive the Notice from Dow Corning in late May 2004, then it is very unlikely that you are considered a Late Claimant. Late Claimant means that you either submitted a motion, letter or Notice of Intent form with the bankruptcy court prior to November 30, 1999 but you failed to also file a Proof of Claim form at that time. The Late Claimant process allows you to submit a Proof of Claim form by August 12, 2004 and be considered timely registered.
b. Notice of Intent Claimants - If you have not read the July 13th version of the e-newsletter concerning updates on Notice of Intent issues, please do so. Notice of Intent surveys were mailed to approximately 3,726 claimants during the week of July 19, 2004. The survey seeks information to help the Settlement Facility determine if a claimant "matches" to an existing Rule 3005 filing by a co-debtor. What does this mean to "match" to a Rule 3005 co-debtor claim? A Rule 3005 co-debtor filing is one by a company such as Bristol, Baxter, 3M, Dow Chemical, etc. These companies filed a claim in the Dow Corning bankruptcy and described groups of claimants that might have a claim against both them and Dow Corning. For example, Bristol filed a claim on behalf of all persons with breast implants or raw materials obtained from Dow Corning, who registered for the MDL settlement, and to whom Bristol may be held liable with Dow Corning. If you match this description provided by Bristol and filed a Notice of Intent within the time deadline, then we believe that you should be eligible to participate in the Dow Corning Settlement Plan. We have posted a chart on the CAC website under "Other Downloads" that contains a summary of all of the descriptions the co-debtor companies used when they filed claims on behalf of implant claimants. Please read this chart. The Settlement Facility has this chart and will use it to try and "match" your claim description to one of the descriptions of claims in the co-debtor filings.
If you received the Notice of Intent Survey, please complete and return it to the Settlement Facility by October 30, 2004.
Helpful Tip: If you are not registered with the MDL 926 Claims Office, we suggest that you file a Late Claim with that office so that you may be covered by the description of claimants contained in one of the Rule 3005 co-debtor filings. This is because most of the Rule 3005 co-debtor filings describe eligible claims as those that filed a claim with the MDL 926 Claims Office. We believe that filing a claim with that office now (if you have not already done so) should enable most breast implant claimants to "match" and thus be eligible for benefits.
Helpful Tip: If you filed a Notice of Intent after November 30, 1999 and by August 30, 2004 and there is a question about whether you "match" and are eligible, we urge you to use caution in spending money, if you are counting on recovering this money from the Settlement Facility, to have your Dow Corning implants removed or to be evaluated for a disease claim. Wait until the Settlement Facility determines if you "match" to a Rule 3005 co-debtor claim. If you match, you may be eligible for settlement benefits. If you do not match, wait for the Court to determine whether unmatched Notice of Intent claimants will be eligible for benefits. We hope that a decision will be made either by the end of 2004 or in early 2005.
How can you tell if you are a Notice of Intent claimant whose eligibility may be in question? When you submitted your Notice of Intent form, the court's docketing agent - Daticon - sent a postcard confirming receipt of the form. On that postcard, it also recorded the date the form was received. If it was received by Daticon after November 30, 1999, then your claim is likely subject to the matching process and survey. Dow Corning has also advised us that Notice of Intent claims should begin with the letters "NI" (although we have seen examples of postcards where the "NI" letters are missing).
We have heard from claimants who report that they received multiple copies of the Survey. This was caused by a printing error at the Settlement Facility. You should complete only one Survey per person. You may disregard the duplicate copies.
2. Claimants' Advisory Committee updates. We have added many new documents, links and information to the CAC website including information for the Breast Implant Litigation Group (BILG) of the American Trial Lawyers Association, support groups, and the CAC's Information Meeting Presentation Notes. The Claims Assistance Program has also translated our newsletters for us to French, German and Swedish (the translations are on the CAC website under "Electronic Newsletter"). If there are other requests for translations of the newsletter, please contact us at firstname.lastname@example.org.
a. The CAC would like to welcome attorney Melissa Ferrari of Glashuetten, Germany who has been named as Foreign Claimant Liaison Counsel to the CAC. Ms. Ferrari will be working on issues that relate to foreign claimants, coordinating with support groups in Europe about possible Claimant Meetings there, and is working to identify issues related to the Explant Assistance Program for non-U.S. claimants.
b. We would like to remind claimants that we do not have access to individual claimant files. Because of the confidentiality provisions in the Settlement Plan, only the Settlement Facility and Claims Assistance have access to claimant files. Therefore, we cannot answer questions about the status of any individual's claim or payment. Please direct all such questions to the Claims Assistance Program at email@example.com or contact them at 1-866-874-6099. When we receive these types of inquiries, we forward them to Claims Assistance for a response. Reminder: in December 2004, the Claims Assistance Program will have an interactive computer system available to internet users so that you can check the status of your claim online. Appropriate confidentiality provisions will be in place to assure that access to your records is limited to you and your attorney of record.
3. Litigation Option. For claimants considering opting out of the Settlement Option to pursue a lawsuit, please be aware that Case Management Order #1 is currently being revised and the final version will likely contain substantial revisions. We urge claimants to carefully consider holding off on submitting their opt-out election while this document is being revised. There is no urgency to submitting an opt-out decision right now. Once your opt-out decision is final, your statute of limitation may begin to run and you may be required to file a lawsuit within a very short period of time or lose your right to litigate altogether.
Helpful Tip: Consider holding your opt-out decision until early November and mail it at that time so that it will be received by November 29, 2004. This will allow you to wait and see what develops with the revised Case Management Order.
Helpful Tip: If you have an implant that was made by Dow Corning other than a Breast Implant, and it is not listed as a "Covered Other Product" in Class 9, 10.1 or 10.2, then there are no settlement benefits offered to you in the Dow Corning Settlement Plan. If you elect to remain in the Settlement Option, you will not receive any compensation. We urge claimants who have a Dow Corning implant that is not a "Covered" implant to consult with an attorney to opt-out and file a lawsuit. The list of Dow Corning implants that are not eligible for settlement benefits is listed on the CAC website.
4. Settlement Facility update. The Settlement Facility Claims Administrator, Elizabeth "Wendy" Trachte-Huber, has provided us with the following:
a. The Claims Assistance Program is currently more than 10 days behind on responding to claimant inquiries; however, they have hired additional claims representatives and implemented a plan to catch up on the backlog within the next several weeks. If you have been waiting for more than 2 weeks for a response to your inquiry to the Claims Assistance Program, please be patient just a short while longer. You should receive a response by the end of next week. If you do not receive a response by August 9, please contact us at firstname.lastname@example.org. We will continue working with the Claims Administrator and Claims Assistance Program to provide you with answers to your questions.
b. Data entry has a backlog of approximately 3 weeks of entering incoming mail and forms. Please be patient. Over 200,000 pieces of mail have been logged in over the past several months, and each and every letter and form deserves individual attention. We urge you not to call Claims Assistance to check on whether they have received your claim forms and/or Participation Form.
c. Claimant payments continue to be mailed every 2-4 weeks. The next several batches of payments will include the backlog of approved Rupture and Disease claims.
d. If you are an attorney of record for a claimant but cannot locate that claimant despite your best efforts, you may write a letter to the Settlement Facility requesting to withdraw as attorney of record. Please provide the Settlement Facility with all available information about the claimant and her last known address so that the Settlement Facility can attempt to locate her/him.
5. MDL 926 Update. In January 2004, a new Claims Administrator - Jean Eliason -- assumed responsibility for the MDL 926 Claims Office and the processing of claims in the Revised Settlement Program. Ms. Eliason has informed us that the MDL 926 Claims Office has developed a website for the Revised Settlement Program that is now up and working. You can access it at www.claimsoffice926.com. Some of the "headings" such as "Orders" and "Appeals Judge Decisions" are still under construction, but will be valuable sources of information when complete.
Helpful Tip: The MDL 926 Claims Office also handles claims for the Inamed limited fund settlement. Inamed is the name of the parent company that owned the breast implant companies McGhan Medical and Cox-Uphoff. Although the Inamed settlement fund deadline passed on October 1, 1999, the fund has some money remaining and has been paying late claims. If you have or had a breast implant made by McGhan Medical after August 30, 1984 and/or a breast implant made by Cox-Uphoff and you have not submitted a claim to the Inamed Settlement Fund, we urge you to do so now. Contact the MDL 926 Claims Office at email@example.com or at their toll free number 1-800-600-0311 for more information. We have also placed the Inamed Claim Form on our website under "Other Downloads." You can print a copy of the Inamed Claim Form and send it to the MDL 926 Claims Office at the address listed on the claim form.
Settlement with U.S. Government in the MDL. We recently learned that a settlement was reached in MDL 926 between the U.S. Government and the MDL defendants and Common Benefit Fund Trust to resolve the issue of subrogation for claimants with Bristol, Baxter or 3M breast implants who received benefits related to their implants from Medicare, the V.A., or another federal program. We do not have any other information at this time, but we will update our website when it becomes available. You may recall that the Tort Claimants' Committee and Dow Corning successfully negotiated a settlement with the U.S. Government for Dow Corning implant claimants. You can read a copy of the September 19, 2002 Order approving the U.S. Government settlement in the bankruptcy on the CAC website under "Court Orders."
6. Class 7 - Silicone Material Claimant Fund. Class 7 consists of persons whose only implants are silicone gel breast implants made by either Baxter (i.e., Heyer-Schulte), Bioplasty, Bristol (i.e., Surgitek, Natural Y, etc.), Cox-Uphoff or Mentor that were implanted between 1976 - 1991. This fund has $57.5 million available to pay claimants either an Expedited Release claim or up to 40% of the Disease compensation grid. There are no Explant or Rupture claims compensated in Class 7. To be eligible for compensation, Class 7 claimants must show that they have made every effort to obtain compensation from their implant manufacturer and cannot obtain any further compensation. This requirement is known as "marshalling." The fund is open for 2 years from the Effective Date and then will close permanently on June 1, 2006.
Helpful Tip: We urge eligible claimants in Class 7 to hold off filing their claim form seeking disease compensation until it is closer to the deadline of June 1, 2006. This allows you to wait and see what develops with regard to your symptoms and disability over the next 2 years and to submit the most up-to-date application at that time. No claims can be paid until after June 1, 2006 anyway, so there is no urgency to submit a Class 7 claim at this time.
Helpful Tip: If you received disease compensation in the Revised Settlement Program, then it is unlikely (although not impossible) that you will recover any additional compensation from the Class 7 Silicone Material Claimant Fund. This is because of the provision that says any compensation you received from Bristol or Baxter will reduce your compensation in the Class 7 fund on a dollar-for-dollar basis. We urge you to consider withdrawing your claim from Class 7 permanently so that the Class 7 Fund does not continue to incur administrative costs of processing claims that will not be eligible for any compensation.
7. Released Claims. Discussions are ongoing on the issue of how to deal with claimants whose Dow Corning claims are ineligible for the Settlement Plan because they allegedly signed a "release" of liability in favor of Dow Corning. We have heard from claimants and attorneys of instances where Dow Corning may have misled claimants who participated in the Removal Assistance Program in the early 1990s. Dow Corning represented to the District Court in Cincinnati in 1992 that the Removal Assistance Program would not require claimants to sign a release. If you signed a release when you participated in the Removal Assistance Program, please contact us at firstname.lastname@example.org and provide a copy of the underlying documents that you received and signed when your implants were removed in the Removal Assistance Program.
8. Orders Entered by Judge Hood. Judge Hood recently signed three orders (all of which are available on the CAC website). They are:
a. Agreed Order Adopting Q&A's Regarding Article IX Of Annex A, The Claims Resolution Procedures - this Agreed Order contains new Q&A's clarifying allowable attorney fees and expenses;
b. Agreed Order Authorizing The Claims Administrator To Provide Data And Documentation To The Canadian Claims Administrators And Claims Offices - this Agreed Order allows the Settlement Facility to provide claim files for members of the Canadian classes to the Canadian claims offices. Claimants who may be a member of one of the Canadian settlements should contact the appropriate Canadian Claims Office for further information about their claim (a list of contacts for these offices is on the CAC website); and
c. Order Granting Motion Of Class 6.1 Counsel For Adjustment Of Attorney Fee Schedule In Accordance With Reduced Compensation For Class 6.1 - this order provides that the fees charged by individually-retained attorneys to a Class 6.1 Claimant (foreign Dow Corning Breast Implant claimant) shall not exceed the sums identified in the Order:
10% of the first $6,000
22.5% of the next $24,000, and
30% of any amount in excess of $30,000.
Please note that the above attorney fee limits apply only to certain foreign Dow Corning Breast Implant claimants. The attorney fee schedule for claimants in Class 5 (U.S. Dow Corning Breast Implant claimants) and Class 6.2 (certain foreign Dow Corning Breast Implant claimants) are as listed below:
10% of the first $10,000
22.5% of the next $40,000, and
30% of any amount in excess of $50,000.
9. Tissue Expander and Tolling Plan Interpretations Update. The Claimants' Advisory Committee and Dow Corning both filed cross motions with the District Court on July 19, 2004 on the pending Plan interpretation disputes involving tissue expanders and the tolling language in Disease Option 2. You may read a copy of the motions on the CAC website. We are preparing responses to Dow Corning's motions which are due August 9, 2004. Until these issues are resolved, the Settlement Facility is not processing tissue expander claims. They have advised us, however, that they are reviewing Disease Option 2 claims.
10. Proof of Manufacturer Issues. We continue to devote a lot of attention to the issue of proof of manufacturer because without acceptable proof that you have or had an eligible implant, your claim for settlement benefits will not be reviewed. The Settlement Facility will only review your explant, rupture and disease claim if you first establish that you have acceptable proof of manufacturer.
Helpful Tip: If you know that you want to remain in the Settlement Option and/or have already returned the Participation Form electing settlement, then the most important form to complete and return is the Proof of Manufacturer Form. Do not complete and return the other claim forms for Explant, Rupture, Disease, or a Medical Condition until you first obtain proof that you have an eligible implant.
a. Form to use for Affirmative Statements. As noted in our July 13th e-newsletter, the Claimants' Advisory Committee has posted eight (8) affirmative statements on our website. These affirmative statements were signed by doctors who stated that they exclusively used Dow Corning breast implants during some period of time. If you can show that you were implanted by one of these doctors during the time period listed in the affirmative statement, then the Settlement Facility is authorized to approve your proof of manufacturer.
Helpful Tip: We urge anyone who has submitted an affirmative statement that has been accepted by the Settlement Facility to send us a copy at email@example.com. We will continue to add these affirmative statements to our website. We have also asked the Settlement Facility to provide copies of approved affirmative statements to us as well (with claimant names removed to protect confidentiality). We hope this will be valuable to claimants to establish that their doctor used Dow Corning breast implants.
b. Affirmative Statements for Implantations Prior to 1972. We have requested Dow Corning to allow the Settlement Facility to accept affirmative statements from doctors that describe implantations of a silicone gel breast implant during the 1960s and prior to 1972, even though the doctor may not state a basis for his conclusion that the implant was made by Dow Corning. This is because Dow Corning was the only manufacturer of silicone gel breast implants during this time. We will report more on this in future e-newsletters.
c. Claims in the RSP That Were Reduced 50% Based On A Dow Corning Breast Implant. Recently, the Honorable Frank Andrews, the Appeals Judge for both the RSP and the Settlement Facility, sent a letter to District Court Judges U.W. Clemon in MDL 926 and Denise Page Hood in the Dow Corning bankruptcy. He requested guidance on the following question: if a claimant had at least one implant from Bristol, Baxter or 3M and a breast implant from Dow Corning in the RSP, then her disease claim in the RSP was reduced by 50%. These same claimants have submitted claims in the Dow Corning Settlement Plan seeking recovery for their Dow Corning breast implants, but some have had their proof of manufacturer rejected as unacceptable because the proof does not meet the Plan's criteria. Mainly, this affects claimants whose proof was a medical record from 1972 or after that referenced "Cronin" or a medical record after 1969 that referenced "silastic" (all lower case) breast implants. In the RSP, these two references were sufficient to count the breast implant as a Dow Corning breast implant and thus have imposed a 50% reduction in disease compensation. In the Dow Corning Settlement Plan though, this proof is unacceptable to show that a claimant had a Dow Corning breast implant. The question presented is whether claimants may recover the other 50% of their disease claim from the RSP now that the Settlement Facility has rejected their proof.
The MDL 926 Court has asked the parties including the Claimants' Advisory Committee to submit position statements concerning this issue by Friday, July 30, 2004. We intend to submit a statement that claimants whose proof of manufacturer of a Dow Corning breast implant is unacceptable in the Settlement Plan should be able to return to the Revised Settlement Program and receive the remaining 50% of their disease award. We do not know when or how Judges Clemon and Hood will proceed, but we will keep you informed through this newsletter and our website. You can read a copy of our position statement on the CAC website when it will be posted on or about August 2, 2004.
d. Dow Corning's Information Turned Over To The Settlement Facility. Pursuant to the terms of the Settlement Plan, Dow Corning has turned over various lists and information to the Settlement Facility that may assist you in identifying your implant manufacturer. They have provided the Claims Assistance Program with the following:
- names of persons who participated in the Dow Corning Removal Assistance Program in the early 1990s
- names of persons who participated in the Ben Gregory clinical study conducted in Florida throughout the 1970s and 1980s
- names of persons whose implants were removed and sent to Dow Corning, including the identification of these implants as having been manufactured by Dow Corning in many instances
- a sales database showing sales of Dow Corning implants to hospitals and doctors worldwide.
Helpful Tip: Call or email Claims Assistance to find out if your name is on any of the first three lists of names above. If it is, you may automatically have acceptable proof of a Dow Corning implant and thus be eligible for settlement benefits. You can also request Claims Assistance to search the sales database for sales of implants to your implanting doctor or hospital. While a sales record alone is not sufficient to have your proof of manufacturer accepted, it can be important information to use to submit to Dow Corning as part of the Individual Review Process.
We have also requested Dow Corning to provide the Claimants' Advisory Committee and Settlement Facility with access to the medical records of claimants that are in Dow Corning's possession. These records were sent to Dow Corning from doctors from the 1960s to 1990s when claimants reported a problem with their implants. Since many doctors and hospitals have destroyed their own medical records, the records in Dow Corning's possession may be the only proof available for some claimants to document their manufacturer, explantation and/or rupture. We will keep you informed about the status of our discussions.
11. Informational Meetings. The first two informational meetings for tort claimants and attorneys were held in Los Angeles and San Francisco last week. The Settlement Facility will post the slides from its presentation on its website (www.dcsettlement.com) after all the meetings are over in September. In addition, the CAC is in the process of posting its Presentation materials including "Helpful Tips In Submitting Claims" on the CAC website. We hope to have this material finalized soon and will include the "Helpful Tips" in our next newsletter on August 17th.
At the informational meetings, the CAC discussed a lot of issues including whether you should remain in the Settlement Option or consider opting out and helpful tips in submitting claims and avoiding common mistakes and deficiencies. We urge everyone - claimants and attorneys alike - to attend one of the meetings in September. Check our website for a list of meetings that you can attend.
12. Filing Deadlines. Please mark your calendar with the claim submission deadlines in 2004. Please note that most of these deadlines mean that your claim forms and materials must be received by the appropriate entity by the posted deadline. Please mail all forms early enough so that they are received by the deadline listed below.
||Type of Deadline
|August 30, 2004
||Deadline to file Notice of Intent form with Daticon (Reminder: register with MDL 926 Claims Office at the same time if you have not already done so)
|October 30, 2004
||Deadline for Notice of Intent claimants to return Notice of Intent survey to Settlement Facility
|November 29, 2004
||Deadline to return Participation Form to Settlement Facility if you want to opt-out
13. Deficiency / Cure Deadlines. If you receive a Notification of Status letter from the Settlement Facility stating that you have a deficiency in your claim submission, please note that there are very short deadlines to cure most deficiencies. The deadlines are listed below:
||Deadline to Cure Deficiency
|Proof of Manufacturer
||No deadline but your claim for Explant, Rupture, Medical Condition or Disease will not be reviewed until you first have acceptable proof of an eligible implant
||6 months from date of Notification of Status letter
||6 months from date of Notification of Status letter
(Classes 9, 10.1 and 10.2)
|6 months from date of Notification of Status letter
||1 year from date of Notification of Status letter
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